J-S29034-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHICON JORDAN :
:
Appellant : No. 299 EDA 2021
Appeal from the PCRA Order Entered December 30, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000450-2014,
CP-45-CR-0000844-2014, CP-45-CR-0000846-2014,
CP-45-CR-0000847-2014
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 23, 2021
Appellant, Shicon Jordan, appeals from the December 30, 2020 order
dismissing his second petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. After careful review, we
affirm.1
The PCRA court summarized the relevant procedural history of this case
as follows:
On January 28, 2015, [Appellant] was sentenced in
the four captioned cases to an aggregate of 144 to
288 months in a state correctional institution,
consecutive to a sentence previously imposed in case
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* Former Justice specially assigned to the Superior Court.
1The record reflects that the Commonwealth has not filed a brief in this
matter.
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No. 2854 Criminal 2013 — a case not implicated or
involved in the instant PCRA motion. The sentences in
case Nos. 450 and 846 followed jury trial convictions;
the sentences in case Nos. 844 and 847 were imposed
based on closed guilty pleas. The pleas and sentences
were negotiated between [Appellant] and the
Commonwealth and approved by the Court.
[Appellant] did not seek reconsideration or, file direct
appeals. Accordingly, the judgments of sentence
became final on February 27, 2015.
The negotiated plea and sentencing agreement
provided that the sentence imposed in Case No. 844
would run concurrent to all other sentences. The
judgment of sentence issued on January 28, 2015
inadvertently omitted case No. 2854 Criminal 2013 as
one of the cases to which the sentence in Case No.
844 was to run concurrent. Accordingly, on December
4, 2015, we issued an amended judgment which
corrected the error and clarified that the sentence in
Case No. 844 was concurrent to the sentence imposed
in Case No. 2854 Criminal 2013 as well as other
specified sentences.
On August 18, 2016, nearly 18 months after the
judgments of sentence became final, [Appellant] filed
a PCRA motion[, his first]. Since the Prior PCRA
Motion was filed almost six months late and did not
plead any exception to the one-year PCRA filing
deadline, on August 26, 2016, we issued an order
providing notice of our intent to dismiss the Prior PCRA
motion as untimely. We incorporate that Order into
this Order by reference.
Counsel was appointed and [Appellant] was given 40
days in which to object to dismissal, file an amended
motion, or both. [Appellant] did not respond.
Accordingly, on November 15, 2016, we issued an
order dismissing the Prior [first] PCRA Motion. Counsel
did not file an appeal.
On March 18, 2019, [Appellant] mailed a pro se
second PCRA motion from jail. Subsequently, we
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issued an order which, among other things, appointed
counsel, granted time for the filing of an amended
PCRA motion, and directed the parties to address both
jurisdictional timeliness filing issues and the law
pertaining to second PCRA petitions.
Subsequently, [Appellant] filed a counseled amended
PCRA motion [on July 17, 2019]. After continuances
were requested and granted, several hearings were
held. Both parties submitted evidence, arguments,
and briefs.
PCRA court opinion, 2/24/21 at 1-2 (parentheticals omitted).
Following evidentiary hearings, the PCRA court denied Appellant’s
petition on December 30, 2020. On January 28, 2021, Appellant filed
separate, timely notices of appeal at each docket number, listing all four trial
court docket numbers. That same day, the PCRA court directed Appellant to
file a concise statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement on February 17, 2021.
Thereafter, the PCRA court filed its Rule 1925(a) opinion on February 24,
2021, adopting its prior December 30, 2020 memorandum.
On May 18, 2021, this Court issued a rule to show cause why the appeal
should not be quashed in light of Commonwealth v. Walker, 185 A.3d 969
(Pa. 2018). On May 19, 2021, Appellant filed a response to the rule to show
cause. On June 11, 2021, this Court entered an order discharging the rule to
show cause and referring this issue to the merits panel.
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Prior to our consideration of the merits of this appeal, we must address
whether Appellant’s notice of appeal complied with the requirements set forth
in Pennsylvania Rule of Appellate Procedure 341(a) and Walker. In Walker,
our supreme court provided a bright-line mandate requiring that “where a
single order resolves issues arising on more than one docket, separate notices
of appeal must be filed for each case,” or the appeal will be quashed. Id. at
185 A.3d at 971, 976-977. The Walker court applied its holding prospectively
to any notices of appeal filed after June 1, 2018.
In the instant case, Appellant’s notices of appeal were filed on January
28, 2021, and therefore, the Walker mandate applies. This appeal was of a
single order resolving issues arising on all four docket numbers. A review of
the record demonstrates that appellant filed separate notices of appeal at each
docket number; however, the notices of appeal referenced all four docket
numbers in their respective captions.
A recent en banc panel of this Court held that such a practice does not
invalidate Appellant’s separate notices of appeal. Commonwealth v.
Johnson, 236 A.3d 1141 (Pa.Super. 2020) (en banc), appeal denied, 242
A.3d 304 (Pa. 2020). Accordingly, we turn to the merits of Appellant’s appeal.
Appellant raises the following issues for our review:
1. Whether the [PCRA] court erred as a matter of
law and abused its discretion in finding
[Appellant’s] PCRA petition was not timely filed?
2. Whether the [PCRA] court erred as a matter of
law and abused its discretion in finding
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[Appellant’s] prior counsel was not ineffective in
failing to amend his [PCRA] petition or failing to
respond to the motion to dismiss his [PCRA]
petition?
3. Whether the [PCRA] court erred as a matter of
law and abused its discretion in finding
[Appellant’s] prior counsel was not ineffective in
failing to notify [Appellant] that he was not
going to respond to the motion to dismiss or file
an amended [PCRA] on his behalf?
4. Whether the [PCRA] court erred as a matter of
law and abused its discretion in finding
[Appellant] was not induced to enter into a plea
under duress when he was not guilty of the
crime?
5. Whether the [PCRA] court erred as a matter of
law and abused its discretion in finding
[Appellant’s] prior counsel did not fail to
investigate the case?
6. Whether the [PCRA] court erred as a matter of
law and abused its discretion in finding
[Appellant’s] prior counsel was not ineffective
for failing to file an appeal regarding an
excessive sentence?
Appellant’s brief at 4-5.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
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PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted).
Preliminarily, we must consider the timeliness of Appellant’s PCRA
petition because it implicates the jurisdiction of this court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation
omitted). All PCRA petitions, including second and subsequent petitions, must
be filed within one year of when a defendant’s judgment of sentence becomes
final. See 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).
Here, the record reveals that Appellant’s judgment of sentence became
final on February 27, 2015, when the 30–day time period for filing a direct
appeal to this Court expired. See id. Accordingly, Appellant had until
February 27, 2016 to file a timely PCRA petition. Id. at § 9545(b)(1).
Appellant’s instant PCRA petition was filed March 18, 2019, more than four
years after his judgment of sentence became final, and is patently untimely.
Accordingly, appellant was required to plead and prove that one of the three
statutory exceptions enumerated in Section 9545(b)(1) applies.
The three statutory exceptions to the PCRA time-bar are as follows:
(i) the failure to raise the claim previously was the
result of interference by government officials
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with the presentation of the claim in violation of
the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated
were unknown to the petitioner and could not
have been ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the
United States or the Supreme Court of
Pennsylvania after the time period provided in
this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i-iii). A petition invoking any of these exceptions
must “be filed within one year of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2).
Instantly, Appellant invokes the “newly-discovered facts” exception to
the PCRA time-bar and argues that he is entitled to a new trial based upon his
purported discovery that he was abandoned by his prior PCRA counsel2 during
the pendency of his first PCRA petition. Appellant’s brief at 14, 18-19, 31.
We disagree.
To be eligible for relief on a claim of newly-discovered evidence, a PCRA
petitioner must plead and prove by a preponderance of the evidence that the
evidence:
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2The record reflects that Appellant was represented during his first PCRA by
Brian S. Gaglione, Esq.
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(1) could not have been obtained prior to the
conclusion of the trial by the exercise of reasonable
diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach the
credibility of a witness; and (4) would likely result in
a different verdict if a new trial were granted.
Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa.Super. 2012) (citation
omitted).
Our supreme court has recognized that attorney abandonment
constituting ineffectiveness per se may constitute a factual basis for the
”newly discovered facts” exception. In Commonwealth v. Peterson, 192
A.3d 1123 (Pa. 2018), our supreme court stated that:
[T]he principle . . . that PCRA counsel’s ineffectiveness
cannot be advanced as a newly-discovered “fact” for
purposes of application of the subsection
9545(b)(1)(ii) exception to the PCRA’s one-year time
bar, has no application in cases where PCRA counsel’s
ineffectiveness per se completely forecloses review of
collateral claims.
Id. at 1030.
Nonetheless, a petitioner invoking the ineffectiveness per se of his prior
PCRA counsel under subsection 9545(b)(1)(ii) is still required to plead and
prove that: (1) he filed his petition within the applicable time frame provided
by subsection 9545(b)(2) – in this case, one year – of when he was able to
first present his claim; and (2) that he could not have presented the claim
earlier through the exercise of due diligence. See id. at 1130-1031 (finding
that a petitioner’s second PCRA petition, based on ineffectiveness per se of
his prior PCRA counsel, was timely when filed within 60 days of when petitioner
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received a copy of Court’s order quashing the appeal of his first, untimely-
filed PCRA petition).
Here, our review of the record reveals that Appellant failed to file his
instant PCRA petition invoking the newly-discovered fact exception within one
year of the date the claims could have been presented, as required by
Section 9545(b)(2). Appellant has also failed to prove that could not have
presented the claim earlier through the exercise of due diligence.
As recognized by the PCRA court,
the record, including the docket and [Appellant’s] own
testimony and exhibits, demonstrates that [Appellant]
was served with the Order dismissing the Prior PCRA
Motion. Thus, in late November, 2016, [Appellant]
became aware that his motion had been denied. The
evidence presented similarly demonstrates that at
some point shortly thereafter, [Appellant] became
aware through communications with appointed
counsel that appointed counsel had not filed anything
on his behalf. At the latest, [Appellant] absolutely
became aware that no action had been taken on
December 7, 2017, when our Clerk of Courts sent
[Appellant], at [Appellant’s] written request, a copy of
the docket sheet. A docket sheet printed and mailed
that day would have confirmed that the Prior PCRA
Motion had been denied and shown that appointed
counsel had not filed an objection or other response
to the Notice of Intent Dismiss, submitted an
amended PCRA motion, filed an appeal, or taken any
other action of record on behalf of [Appellant].
Nonetheless, the instant PCRA motion was not filed
until March 18, 2019, two years and three months
after the docket sheet brought or in the exercise of
due diligence should have brought to his attention the
omissions of appointed counsel.
....
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In-between the time [Appellant] received the docket
sheet and the filing of the instant PCRA motion,
[Appellant] attempted to file pro se appeals, out-of-
time without permission, from the order dismissing
the Prior PCRA Motion. However, those attempts were
not made until well after the [one-year] filing period
expired. In fact, the instant PCRA was not filed until
more than one year after the Superior Court returned
to our Clerk’s Office a pro se appeal [Appellant]
attempted to untimely file directly in the Superior
Court. Simply, while [Appellant] caused some docket
activity, his actions were untimely and not diligent.
PCRA court opinion, 2/24/21 at 8-9.
Under Section 9545(b)(1)(ii), “due diligence requires neither perfect
vigilance nor punctilious care, but rather it requires reasonable efforts by a
petitioner, based on the particular circumstances, to uncover facts that may
support a claim for collateral relief.” Commonwealth v. Brown, 141 A.3d
491, 506 (Pa.Super. 2016) (citation omitted; emphasis added). Clearly,
appellant failed to undertake reasonable efforts in this instance.
Based on the foregoing, we find that Appellant has failed to demonstrate
that his untimely petition satisfies the newly-discovered fact exception to the
statutory one year time-bar.
Appellant also argues that the untimeliness of the instant PCRA petition
should be excused due to the ineffectiveness of his prior counsel with respect
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to his guilty plea, investigation of the case, and sentencing.3 See Appellant’s
brief at 31-32. We find that such relief is impermissible.
Courts in this Commonwealth have long recognized that there is no
statutory exception to the PCRA time-bar applicable to claims alleging the
ineffectiveness of prior counsel. As our Supreme Court has explained:
It is well settled that allegations of ineffective
assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.
See Commonwealth v. Pursell, [749 A.2d 911,
915-916 (Pa. 2000)] (holding a petitioner’s claim in a
second PCRA petition, that all prior counsel rendered
ineffective assistance, did not invoke timeliness
exception, as “government officials” did not include
defense counsel); see also Commonwealth v.
Gamboa-Taylor, [753 A.2d 780, 785-786 (Pa.
2000)] (finding that the “fact” that current counsel
discovered prior PCRA counsel failed to develop issue
of trial counsel’s ineffectiveness was not after-
discovered evidence exception to time-bar)[.]
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citation
formatting amended).
To allow Appellant to raise new claims of prior counsel’s ineffectiveness
more than four years after his judgment became final directly conflicts with
the legislative mandate of Section 9545(b)(1) of the PCRA. See
Commonwealth v. Turner, 80 A.3d 754, 767 (Pa. 2013) (stating that the
PCRA places time limitations on claims, and in doing so, “strikes a reasonable
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3 The record reflects that Appellant was represented at trial by Chandra V.
Bliece, Esq.
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balance between society’s need for finality in criminal cases and the convicted
person’s need to demonstrate that there has been an error in the proceedings
that resulted in his conviction”), cert. denied, 572 U.S. 1039 (2014). The
fact that Appellant frames some of his issues as alleging the ineffectiveness
of prior counsel simply does not overcome this Court’s lack of jurisdiction to
address them.
Accordingly, for all the foregoing reasons, we discern no error on the
part of the PCRA court in dismissing Appellant’s second petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2021
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